The outcome was already determined, the stories already written, but the cameras and the recorders were out anyway, waiting for the judge to say the words. He was about to declare Richard Miles actually, technically, legally innocent of a 1994 murder, a shooting at a Texaco station near Bachman Lake. A higher court had already declared him innocent. There was nothing left to do but a little criminal-justice theater.
The reporters in attendance wondered what would make this day's story unique among the wave of stories about innocent prisoners. Miles was about to provide their answer.
A thin man with a strong jawline and determined face, Miles listened to the judge's apology and then, before he addressed the crowd, leaned toward his lawyer.
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"Can we hit them with a bomb?" he asked. "Is it a good time to hit them with a bomb?"
"Richard, you're a free man," he remembers his lawyer saying. "You can say whatever you want to say."
He stood, encircled by reporters. After some thank yous, he lit the fuse: "I want to say that me and my lawyer, Cheryl Wattley, we'll make a formal complaint against Thomas D'Amore for prosecutorial misconduct," Miles said, referring to the lawyer who prosecuted him. "My life was taken because of malicious acts by a prosecutor. I can't just let that go by."
As he spoke, several of the 33 innocent men freed in recent years by Dallas County watched from the gallery, dressed as if for mass. At least seven of their cases had contained "official misconduct," mostly exculpatory evidence that wasn't disclosed to defense lawyers, according to Michigan and Northwestern University's National Registry of Exonerations. Misconduct contributes to 42 percent of exoneration cases nationally, those researchers say.
It's a problem that's had a particularly profound effect in Texas. In 91 criminal cases between 2004 and 2008, Texas courts found that prosecutors withheld evidence, made improper arguments or committed other misconduct, according to a report by Veritas Initiative, part of a national Prosecutorial Oversight coalition. But only one prosecutor was disciplined in that time period by the State Bar of Texas. (His license was suspended for two years.)
As Miles and his fellow exonerees know well, prosecutors are virtually immune from accountability. They're protected from civil action, and the statute of limitations for prosecuting them generally runs out before a prisoner even goes free. Miles could file a grievance with the State Bar, the organization charged with attorney discipline. But there's a statute of limitations on those complaints, too.
"The pendulum is at its very farthest point in its swing toward maximizing prosecutorial power," says Scott Henson, a policy advisor for the Innocence Project of Texas and the author of Grits for Breakfast, a Texas criminal-justice blog. "We're at the point where all these grants of power to prosecutors have started to create, basically, false positive errors in the system where we're falsely accusing people," he says. And all venues for remedy — the courts and the State Bar, basically — are "neutered and unable to deal with it."
There's a movement to try to reverse the neutering. Advocates, defense lawyers, academics and even some prosecutors argue that prosecutors shouldn't walk unscathed, at least not from the most severe disasters of jurisprudence. Statutes of limitations should be lengthened, they say, and prosecutors sued or charged with crimes more easily. Or, they say, more exonerees should take the path of Michael Morton, who was exonerated of his wife's murder last year and is now using a rare legal tactic to pursue charges against his prosecutor — a case that could provide a road map for future exonerees.
Who knows: Miles may even try that route himself. For now, though, he's starting with a State Bar grievance, which he says he'll file any day.
"Unless there is accountability in place, there is forever going to be false imprisonment," he says. "Somebody has to try. ... It's not about me winning or failing, it's just about me doing it.
"You kidnapped me," he says of his prosecutor. "You aided to this kidnapping."
It started for Miles in May of 1994. An Oak Cliff boy, raised by a pastor, Miles was walking to a friend's Dallas apartment when a police helicopter's spotlight split the night sky. Suddenly officers were on top of him, cuffing him.
They drove him to a Texaco station near Bachman Lake, where a witness was waiting. That witness, Marcus Thurman, had just watched a black man walk up to a car at the Texaco station and fire a 9 mm into the driver's side window, killing one person and injuring another. The shooter had fled in a white Cadillac and, after a short drive, left the car on foot.
The shooter was wearing shorts. Miles was wearing pants. But Thurman ID'd him as the gunman anyway.
A prosecutor named Thomas D'Amore worked Miles' case. An expert witness testified that Miles had levels of chemicals on his right hand that were consistent with handling a gun. The witness mentioned casually that this could also be from batteries or handcuffs (although she didn't lend much credibility to that argument). But the case mostly relied on Thurman's testimony.
What most people in the courtroom, including Miles and his lawyer, did not know was that an anonymous caller had told police that someone else was the shooter. And a second undisclosed police report detailed a fight between the two victims and a third man five days before the shooting.
These reports didn't surface until 2007, when Centurion Ministries, an innocence advocacy non-profit, asked for them. Evidence of Miles' innocence began building as advocates and Miles' lawyer continued digging. Finally, in 2010, Thurman recanted his original statement.
But it wasn't the first time Thurman had balked at identifying Miles. When he recanted, he also revealed to the Dallas District Attorney's office that he had told D'Amore he would not be able to identify Miles during the 1995 trial. But D'Amore simply pointed to where Miles would be sitting and told him to single out the man he had already identified to police, Thurman said. (D'Amore denies that ever happened.)
The Court of Criminal Appeals published a lengthy opinion in February supporting Miles' innocence, noting the two police reports and Thurman's recantation, and explaining that the gun-residue science had proven unreliable in the time since the original trial. It was this documentation of his innocence that landed Miles back in a Dallas courtroom this year for the symbolic affair, and for his declaration that he would pursue the retribution that eludes most exonerees.
It certainly eluded Anthony Graves. On August 18, 1992, Bobbie Davis, her daughter, and her four grandchildren were murdered in a brutal stabbing in Somerville, their house set ablaze. Robert Carter was convicted of the crime, and he singled out Graves as his accomplice. Both men were sentenced to death.
But in 2006, the 5th U.S. Circuit Court of Appeals overturned Graves' conviction based mainly on negligence by the prosecutor, Charles Sebesta, who never divulged that Carter confessed to committing the murders alone.
Special Prosecutor Kelly Siegler was assigned to reinvestigate the case. She turned up something that shocked her: nothing. With no evidence to retry the case, she became convinced of Graves' innocence.
"It's a prosecutor's responsibility to never fabricate evidence or manipulate witnesses or take advantage of victims," Siegler told reporters in dismissing the case, according to Texas Monthly. "And unfortunately, what happened in this case is all of those things."
The State Bar of Texas dismissed a complaint alleging misconduct. Sebesta has never been disciplined, but he maintains a website defending his actions in the case.
Then there's Kerry Max Cook. In 1977, Cook's neighbor Linda Jo Edwards was found dead, struck in the head with a statue, repeatedly stabbed and mutilated. Cook's fingerprints were found on her door. A jury convicted him and sentenced him to death.
But after a complicated series of trials, mistrials and guilty verdicts, in 1996 the Court of Criminal Appeals reversed his conviction and basically accused the DA's office of railroading him. Prosecutors had presented the testimony of a jail-house informant who said Cook had admitted guilt, but a deal to reduce the informant's sentence was never revealed. After the informant's release, he admitted that he fabricated Cook's confession — a fact unknown to the defense until years after the trial.
Prosecutors had also depicted Cook and his neighbors as strangers, which raised questions about the presence of his fingerprints. They failed to disclose that, according to Cook's friend, the two knew each other. She'd even invited him over for a tryst.
"In conclusion," the court ruled, "the State's misconduct in this case does not consist of an isolated incident or the doing of a police officer, but consists of the deliberate misconduct by members of the bar, representing the State over a 14-year period — from the initial discovery proceedings in 1977 through the first trial in 1978 and continuing with the concealment of misconduct until 1992."
Cook was released from prison, but he still has not been formally exonerated, as prosecutors continue to fight to keep him from being labeled innocent. Jack Skeen, the prosecutor who handled Cook's case, is now a Smith County district judge.
And on it goes. James Woodard was arrested for strangling and sexually assaulting his girlfriend in 1980, even though the victim's acquaintance told prosecutors that he'd seen her leave a night of partying with two men, including an alleged sex criminal. Woodard was released in 2008. His prosecutor, Luke Laman, was never disciplined publicly. He practices law in Plano.
Dale Duke was convicted of molesting his stepdaughter in 1992 and sentenced to 20 years, despite his mother-in-law telling prosecutors that her granddaughter had concocted the abuse. The prosecutor on the case, Kate Porter, never shared her statement with Duke's attorney. She had died by the time Duke was exonerated.
"A lot of times ... [prosecutors] will think, 'Well, that's not credible or that's not true,' and that's not their job to do that," says Duke's attorney, Robert Udashen.
Adds Jeff Blackburn, of the Innocence Project of Texas: "I'm actually more and more convinced that you don't get somebody wrongfully convicted without prosecutorial misconduct on some level."
Meanwhile, it's so widely understood that prosecutors will not be punished by the State Bar that Gary Udashen, president of the Innocence Project of Texas (and Robert's brother), says he wouldn't even bother filing a grievance. "I'm not inclined to file a grievance against a prosecutor when I know it's going to get dismissed," he says. "It's going to look like I was wrong and he was right."
In his office on a recent afternoon, Reed Prospere, a Dallas criminal defense attorney and former prosecutor, pages through documents from a case he worked 30 years ago.
The case sprang from a rash of crimes that happened in the spring of 1982, when at least 60 women in Dallas area gyms, spas and apartment complexes were held at gunpoint and forced to take off their clothes and perform sex acts in what was a terrifying criminal tirade.
The victims gave a similar description of their attacker: He had striking blue eyes and wore a gray hoodie. He covered his mouth with a piece of cloth.
A similar crime wave had swept Kansas City, Missouri, around the same time, and women in both cities identified a man named Steven Phillips — some after police had released his image to media. Phillips had a history of peeping into apartments and revealing himself inappropriately.
Prospere's memories of the 1982 case are vague, mainly assembled by reading old documents. "It was just a no-brainer," he says. "You had multiple [IDs]."
But as the case went to trial, the actual assailant of one of the Dallas-area victims was in custody for similar crimes in Wichita, Kansas, which police documents demonstrated. The Dallas Police had concluded that her identification, which she provided after seeing Phillips' photo on television, was inaccurate, casting doubt on the other IDs. But the document never made it to Phillips' lawyers. Nor did another police report, which documented that a woman sexually assaulted in Garland identified a different attacker, Stanley Goodyear, who was wanted for similar crimes in Kansas City.
"I asked the State to turn over all exculpatory evidence," his trial attorney Edwin Sigel wrote in a 2008 affidavit. "Despite my request, I now know that the State did not disclose at least some very important exculpatory evidence."
Prospere, who came onto the case late, hasn't seen these reports before now. "That's news to me," he says, thoughtfully turning the pages. A short while later, he looks up.
"If you have a file where the victim identified somebody other than the guy we had on trial, that would be a major, 'What are we doing here?'" Prospere says. He speculates that the information never made its way from police to the prosecutors.
It's a common problem, he says. While police give prosecutors a thin file of relevant information, the complete, fat file stays in the department with documents that may be useful. As a prosecutor, Prospere made it a habit to get everything from the police, not simply what they deemed relevant. But he wasn't originally assigned to Phillips, he says, so he didn't have that chance.
In 2008, DNA testing cleared Phillips of all charges and implicated Goodyear as the true assailant. "Something obviously went wrong in Steven Charles Phillips' case," Prospere says. "I would bet my children's right arms that it wasn't in the District Attorney's office where the problems existed. ... You've got a detective somewhere that didn't bring that information to someone's attention."
Chris Stokes, who prosecuted Phillips' second trial, agrees. "If the reports you describe existed and were in the prosecution file they would have disclosed to the defense," he writes in an email. The Dallas investigating officer on Phillips' case retired in 2002, and the Garland officer who filed the report now works in real estate and barely remembers the case.
The prosecutor in Miles' case, D'Amore, claims his circumstances were similar to Prospere's. The police had reports that "were not given to the prosecution or the defense," D'Amore writes in an email.
That's why advocates need to be careful about pushing for more accountability and throwing around the term "prosecutorial misconduct," says Rob Kepple, the executive director of the Texas District and County Attorneys Association. The term is used too broadly, he says, every time a prosecutor or the police makes a mistake rather than in cases of "dishonest or unfair or deceitful" conduct.
"What I've been hearing is prosecutors need to be held accountable. That implies that they've done something wrong," he says. "It does happen; there needs to be consequences. But that's a lot different than your garden-variety trial error."
He also argues that a wide swath of legal immunity is necessary for prosecutors to effectively pursue justice. It is meant "to encourage independence and courage for prosecutors to do the right thing," he says. If that immunity were ever compromised, "you're not giving Michael Morton and you're not giving Anthony Graves the right to sue prosecutors. You're giving everyone the right to sue prosecutors."
And if the pendulum ever swung too far in that direction, the "rich and powerful" could sue their way out of lawsuits while not much would change for anyone else.
Michael Morton often stresses that he is neither rich and powerful nor poor and criminal. "I'm incredibly average," he says. "I lived in suburbia. My wife and I had careers." He led a peaceful existence with his family until August 13, 1986, when Christine was murdered and he took the fall. A Williamson County jury convicted him.
But as Morton sat in prison, facing a life term, Houston attorney John Raley worked pro bono with the Innocence Project to prove Morton's innocence. Morton's mother-in-law had told authorities that his 3-year-old son had seen a "monster" hurting his mother — evidence Morton's defense attorney says he had never seen. Raley also never learned of evidence that neighbors had seen a man with a green van walk into the wooded area near the Mortons' house, or that Christine's credit card was used and her signature forged on a check after her death.
It was DNA evidence that ultimately freed Morton. When a bloody bandana was tested after a long battle against it, the DNA matched not Morton's but that of Mark Allen Norwood, who had committed similar crimes. Morton was released in October. District Attorney John Bradley, who'd fought Morton's DNA testing for years, lost his recent bid for re-election largely because of his handling of this case.
"On a personal level, I wanted to know why they did this to me," Morton says.
His lawyers prepared a report requesting a Court of Inquiry, a special hearing to determine whether there's enough evidence of misconduct by Ken Anderson, the prosecutor in Morton's case, to pursue criminal charges. Contempt of court, tampering with evidence, tampering with government records: Morton's team says Anderson did it all. (Anderson's attorney, Eric Nichols, denies that the prosecutor committed a crime.) A judge approved the Court of Inquiry, scheduled to begin September 11.
It's unclear whether the statute of limitations has passed on the alleged crimes. Morton's lawyers claim the clock starts when the wrongdoing is discovered, not when it's committed. Regardless, they say, the Court of Inquiry is designed to determine whether there is probable cause that a crime has occurred, not whether too much time has passed to pursue charges. Anderson's lawyers expect that the statued of limitation will come into play as procedings progress.
In September, if the evidence supports an indictment but nothing comes of it because of statute of limitations or other variables, Henson, of Grits for Breakfast, says, "The message may simply be that we don't have any effective mechanisms to hold prosecutors accountable."
If nothing else, Morton's case has shone a light down a previously uncharted path. But procedurally, Morton's tactic is far from a silver bullet. It requires an especially agreeable judge and an abundance of legal resources.
Morton's lawyers have asked the judge to forward their findings to the State Bar, but it's also unclear whether the statute of limitations has expired for that. (The four-year window opens when the misconduct is committed — except in cases of fraud, in which case it opens when the misconduct is discovered.)
In other words: There's almost no way to pursue justice against even the worst-offending prosecutor.
"I don't know what legally you can do," says Dallas District Attorney Craig Watkins, who has made his name correcting the work of police and prosecutors. "You can't have him disbarred because there's a statute against that, you can't pursue a criminal case against him because there's a statute against that. I don't know what you can do."
Watkins says he would fire a prosecutor who knowingly withheld evidence and would consider filing criminal charges in extreme cases. When he took office, he fired several prosecutors who he felt were out of line with his philosophy, and others resigned. About 15 left in total, he says, including Miles' prosecutor, D'Amore.
He'd like more options to exist, he says. He's part of a Texas District and County Attorneys Association committee that's charged with issuing a report on misconduct later this summer. He'll advocate for "reforms," he says, but won't elaborate.
A similar conversation is expected to heat up in Austin next year. Senator Rodney Ellis of Houston, who has pursued legislation relating to innocent prisoners, says he'll pursue discovery reform — tightening the rules that govern what and how lawyers exchange information — as well as written guidelines for internal discipline in district attorneys' offices, among other reforms.
Morton, meanwhile, says he will use his case as a catalyst for more accountability.
"All that would really be required from a legal point of view is have prosecutors liable if they're caught suppressing exculpatory evidence or make it some procedural law that they would be liable for a small fine and be lost of their law license," he says, pointing to the way doctors and others lose their licenses for inflicting harm.
And already, he's pointing the way for Richard Miles, who's now plotting his next move after filing his grievance. Miles doesn't know much about a Court of Inquiry, but he's considering sitting in on it in September "just out of curiosity and knowledge," he says. "I want to take this step by step."
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